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TMI Blog2011 (8) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... iecemeal determination of the income of an assessee for relevant period, one by the Settlement Commission - Thus, the order of the Settlement Commission is conclusive, no power vests in the Assessing Officer to issue notice in respect of the period and income covered by the order of the Settlement Commission. - 25 TO 29 AND 30 TO 38 OF 2011 - - - Dated:- 24-8-2011 - DEVI PRASAD SINGH, DR. SATISH CHANDRA, JJ. JUDGMENT Devi Prasad Singh, J. I have been privileged to read the judgment prepared by brother Justice Dr. Satish Chandra. I agree with the final verdict in the present appeal but respectfully, I express my separate opinion. We have heard Shri D.D. Chopra, learned counsel for the appellants. 2. After filing return in response to the notice issued under section 153A and 153C of the Income-tax Act (in short 'the Act') for the assessment years 2000-01 to 2006-07, the assessee moved an application before the Settlement Commission on 31-5-2007 in pursuance to the power conferred by section 245C of the Act. The Settlement Commission while allowing the application and settling the dispute for the assessment year in question under section 245D(4) by order dated 31- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid and assessee shall be liable to pay simple interest for every month or part of the month on the amount remaining unpaid from the date of expiry of 35 days. In case the settlement becomes void as provided under sub-section (6) of section 245D of the Act, then the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the income-tax authority concerned, may, notwithstanding anything contained in any other provision contained in the Act, completes such proceedings at any time before the expiry of two years from the end of financial year in which the settlement became void. It shall be appropriate to re-produce 245D of the Act, which is as under: "Section 245D. (1) On receipt of an application under section 245C, the Settlement Commission, shall, within seven days from the date of receipt of the application, issue a notice to the applicant requiring him to explain as to why the application made by him be allowed to be proceeded with, and on hearing the applicant, the Settlement Commission shall, within a period of fourteen days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he report within the aforesaid period, the Settlement Commission shall proceed further in the matter without the report of the Commissioner. (2D) Where an application was made under sub-section (1) of section 245C before the 1st day of June, 2007 and an order under the provisions of sub-section (1) of this section, as they stood immediately before their amendment by the Finance Act, 2007, allowing the application to have been proceeded with, has been passed before the 1st day of June, 2007, but an order under the provisions of sub-section (4), as they stood immediately before their amendment by the Finance Act, 2007, was not passed before the 1st day of June, 2007, such application shall not be allowed to be further proceeded with unless the additional tax on the income disclosed in such application and the interest thereon, is notwithstanding any extension of time already granted by the Settlement Commission, paid on or before the 31st day of July, 2007. (3) The Settlement Commission, in respect of (i) an application which has not been declared invalid under sub-section (2C); or (ii) an application referred to in sub-section (2D) which has been allowed to be further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order passed under sub-section (4) shall provide for the terms of settlement including any demand by way of [tax penalty or interest], the manner in which any sum due under the settlement shall be paid and all other matters to make the settlement effective and shall also provide that the settlement shall be void if it is subsequently by the Settlement Commissioner that it has been obtained by fraud or misrepresentation of facts. (6A) Where any tax payable in pursuance of an order under sub-section (4) is not paid by the assessee within thirty-five days of the receipt of a copy of the order by him, then, whether or not the Settlement Commission has extended the time for payment of such tax or has allowed payment thereof by instalments, the assessee shall be liable to pay simple at one and one-fourth per cent for every month or part of a month on the amount remainomg unpaid from the date of expiry of the period of thirty-five days aforesaid. (6B) The Settlement Commissioner may, at any time within a period of six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (4): Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application made under section 245C has been allowed to be proceeded with under section 245D, the Settlement Commissioner shall, until an order is passed under sub-section (4) of section 245D, have, subject to the provisions of sub-section (3) of that section, exclusive jurisdiction to exercise the powers and perform the functions of an income-tax authority under this Act in relation to that case: Provided that where an application has been made under section 245C on or after 1st day of June, 2007, the Settlement Commission shall have such exclusive jurisdiction from the date on which the application was made: Provided further that where (i) an application made on or after the 1st day of June, 2007, is rejected under sub-section (1) of section 245D; or (ii) an application is not allowed to be proceeded with under sub-section (2A) of section 245D or as the case may be, is declared invalid under sub-section (2C) of that section; or (iii) an application is not allowed to be further proceeded with under sub-section (2D) of section 245D, The Settlement Commission, in respect of such application shall have such exclusive jurisdiction up to the date on which the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 077; State of U.P. v. Singhara Singh, AIR 1964 SC 358; Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295 (Para 34), Chandra Kishore Jha v. Mahavir Prasad, [1999] 8 SCC 266; Delhi Administration v. Gurdip Singh Uban, [2000] 7 SCC 296; Dhanajay Reddy v. State of Karnataka, AIR 2001 SC 1512, CIT, Mumbai v. Anjum M.H. Ghaswala, [2002] 1 SCC 633; Prabha Shankar Dubey v. State of M.P., AIR 2004 SC 486, Ramphal Kundu v. Kamal Sharma, AIR 2004 SC 1657. Taylor v. Taylor, [1876] 1 Ch.D. 426; Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915; Chettiam Veettil Ammad v. Taluk Land Board, AIR 1979 SC 1573; State of Bihar v. J.A.C. Saldanna, AIR 1980 SC 326, A.K. Roy v. State of Punjab, AIR 1986 SC 2160; State of Mizoram v. Biakchhawna, [1995] 1 SCC 156; J.N. Ganatra v. Morvi Municipality Morvi, AIR 1996 SC 2520; Babu Verghese v. Bar Council of Kerala, AIR 1999 SC 1281; Chandra Kishore Jha v. Mahavir Prasad [1998] 8 SCC 266 and Mansa Ram Yadav v. State of U.P. [2009] 27 LCD 1232. Accordingly, it shall be incumbent on the Settlement Commission to decide its obligation in terms of provisions contained in the statute (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provision of the taxing statute. No tax may be imposed by inference or by analogy or by trying to provoke into the intention of the legislation or by what was the substance of the matter. The court must look squarely as the words of the statute on interpreting them. It must interpret a taxing statute in the light of what is clearly expressed. It cannot employ anything which is not expressed so as to supply any assumed deficiency. 17. Accordingly, in the absence of any right conferred by the Act, mere observation of the Settlement Commission will not empower the assessing or appellate authority to re-assess on any ground, whatsoever, for the same financial year with regard to which the Settlement Commission had exercised jurisdiction and given a finding. 18. There is one other aspect of the matter. A plain reading of section 245D read with section 245F of the Act provides that once a matter falls within the domain of Settlement Commission, no authority of the Income-tax Department will have got jurisdiction to assess tax for the same financial year and finding of the Settlement Commission shall be conclusive and final under section 245-I of the Act. Legislature to their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes as an order of the principal and cannot be revised or reviewed by the principal unless such a power is specifically conferred vide State of Orissa v. Commissioner of Land Records and Settlement AIR 1998 SC 3067, OCL India Ltd. v. State of Orissa [2003] 2 SCC 101 and Ishwar Singh v. State of Rajasthan [2005] 2 SCC 334. 23. In view of settled proposition of law, the Settlement Commission could not have made observation delegating its power to assessing authority to re-open the case in certain circumstances for the same financial year when he himself has been conferred wide power to deal with situation under the statutory provisions (supra). 24. The Tribunal has rightly decided the appeal on the sound principle of law relying upon the case of Neeru Agarwal (supra). No substantial question of law is involved, which may call for framing of issue since the question involved is no more res integra. The appeal being devoid of merit is hereby dismissed in limine. Dr. Satish Chandra, J. - All the fourteen appeals have been filed by the Revenue under section 260A of the Income-tax Act, 1961 against the common judgment and order dated 17-3-2011 passed by the Income-tax Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Tribunal may kindly be set aside. None appeared on behalf of the opposite party. We have heard the learned counsel for appellant and gone through the material available on record. From the record, it appears that the search operation was carried on by the department and certain documents were seized by it. The department was in possession of the entire material including the investment made by the assessee, therefore, it cannot be said that the assessee had played any fraud or mis-represented the fact. The department was very much a party before the Settlement Commission. Moreover the order of the Settlement Commission has been allowed to become final. The Settlement Commission, by operative portion has settled the income of the assessee and provided immunity with the rider that the order would be void if it was found subsequently that the same was obtained by fraud or misrepresentation of facts. It is not the case of the department that the order was obtained by fraud or misrepresentation of fact. The Assessing Officer, therefore, has no jurisdiction to issue the impugned notice for making further enquiry in the matter in view of sections 245D(6) and 245-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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